Introduction

The Illegal Migration Act 2023, enacted under the last Conservative government of Prime Minister Sunak, has as its focus the removal of persons who arrived in or entered into the United Kingdom without leave (permission). Among other things, the Act’s provisions function to frustrate asylum claims and inhibit the grant of lawful status. In the absence of any third country such as Rwanda to which to remove asylum seekers, this has led to rapid growth in the number of undermined asylum claims, leaving asylum seekers in limbo and the government with ever-expanding asylum support costs. While the Act’s principal duty to remove such persons was not brought into force, other provisions buttressing its purpose were commenced. Among them were provisions to restrict the grant of lawful status and, less noticed, to restrict the grant of British nationality.

In policy terms, as a provision that operated to impede the final step to integration into UK society by people long-resident, the restriction on the grant of British nationality was something of a self-inflicted wound that, over time, would have led to an unsettled resident metic class of persons, alienated metaphorically as well as literally. Happily, the new Labour government has drawn the sting from the offending restrictions on the grant of lawful status provisions and the grant of British nationality by amending the Act by regulations made under it, a technique itself not uncontroversial. In what follows, the focus is on the changes to British nationality provision and not to changes as regards the grant of lawful status.

British nationality restrictions under the Illegal Migration Act 2023

As enacted and as in force from 20 July 2023, sections 31-37 of the Illegal Migration Act 2023 introduced restrictions on the grant of British nationality. Four classes of British nationality were affected: British citizenship, British overseas territories citizenship, British Overseas citizenship, and British subject status. The classes of British National (Overseas) and British Protected Person were unaffected.

An “ineligible person” falls to be excluded from access to British nationality. An ineligible person was one who has ever met the four conditions that need to be satisfied for the Secretary of State to be subject to the duty to remove a person under section 2 of the Act but with one critical adjustment: that section was to be read as if it referred to a person entering or arriving in the United Kingdom on or after 7 March 2023 and not merely the date on which the Act was passed (20 July 2023). Thus, not only were these provisions in force for British nationality purposes, they had retrospective effect.

In a further twist, although the immigration provisions of the Act were and are UK specific, as regards the British nationality provisions of the Act, the United Kingdom is defined to include the British non-metropolitan territories: the Crown Dependencies (Channel Islands and the Isle of Man) and the British overseas territories. The British Nationality Act 1981 provides a single nationality law code for all UK and non-UK British territories, though each one territory makes its own immigration laws. In that context, the wider territorial scope applicable to the British nationality law provisions of the Illegal Migration Act 2023 is unsurprising.

As regards those person affected, among others, as enacted, a person who fell within the definition of ‘ineligible person’ was a person:

(1) who requires leave to enter the UK and who has entered it without leave to enter or with leave to enter that was obtained by deception by any person; who entered the UK in breach of a deportation order; or who requires valid entry clearance under the Immigration Rules but who has arrived in the UK without it,
(2) who entered or arrived in the UK on or after 7 March 2023,
(3) who did not come directly to the UK from a country in which their life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion (NB under the Act they are not treated as so coming if they passed through or stopped in another country outside the UK where their life and liberty were not so threatened), and
(4) who requires leave to enter or remain in the UK but does not have it.

As regards British citizenship, an ineligible person is excluded from a grant of a certificate of naturalisation as a British citizen under section 6 of the British Nationality Act 1981 (1981 Act).

Further, as regards British citizenship, an ineligible person is excluded from registration by entitlement on application under the 1981 Act under sections 3(2) or (5) (acquisition of British citizenship while a minor); 4(2) (acquisition of British citizenship while a British overseas territories citizen, British overseas territories citizen, British National (Overseas), British Overseas citizen, British subject, or British protected person); section 5 (acquisition of British citizenship by registration as a British overseas territories citizens having a connection with Gibraltar); section 10(1) (registration as British citizen following renunciation of UK citizenship); and section 13(1) (resumption of British citizenship).

Further, as regards British citizenship, an ineligible person is excluded from registration at discretion on application under the 1981 Act under section 3(1) (acquisition of British citizenship by registration while a minor); section 4A (acquisition of British citizenship by registration while a British overseas territories citizen); section 10(2) (registration as British citizen following renunciation of UK citizenship); and section 13(3) (resumption of British citizenship).

Similar provision was made to exclude ineligible persons from routes to registration and naturalisation as a British overseas territories citizen; and from routes to registration as a British Overseas citizen (while a minor) and as a British subject (while a minor). Note that no mode of acquisition of British nationality enacted in British nationality laws to alleviate statelessness by the grant of one or more classes of British nationality is affected by the Illegal Migration Act 2023’s provisions.

The Illegal Migration Act 2023 provides modest provision to redeem someone from being considered an ineligible person if the Secretary of State considers that the force of the exclusion in relation to that person would contravene the UK’s obligations under the Human Rights Convention. Given the limited applicability of human rights protection to the grant of nationality, this fig-leaf is more apparent than real and would have afforded relief to few persons if any in practice.

As a result of being barely a year old, the provisions of the Illegal Migration Act 2023 that restrict access to British nationality have had little time to make any impact. Many of the modes of acquisition they affect, for example, naturalisation as a British citizen, as a matter of law or policy require several years of lawful UK residence before an application for citizenship may be made.

The amendment made by the Illegal Migration Act 2023 (Amendment) Regulations 2024

On 22 July 2024, the new Labour government made use of a power provided for in the Illegal Migration Act 2023, to amend the Act’s provisions by means of Secretary of State-made regulations; that is to say, it has used a Henry VIII power to amend the Act. Such a method of amendment to primary legislation is controversial as, to the detriment of the rule of law, it hands to a minister powers to act as a legislator, powers that ordinarily are reserved to Parliament as the supreme legislative body. Thereby, it undermines the constitutional principle of the separation of powers. Further, although such regulations are laid before Parliament after having been made, there they will be subject to only such limited scrutiny as is afforded by the ‘made negative’ procedure. That such power to make regulations may have been exercised to good effect in making a welcome change on this occasion ought not to be seen an any encouragement to further recourse to such methods.

To return to the matter of substance. By amending both the duty to remove provision of the Illegal Migration Act 2023 (section 2) and the British nationality provisions (sections 31-37), ‘ineligible persons’ are now not defined by reference to those who entered or arrived in the UK on or after 7 March 2023 but by reference to those who entered or arrived on or after the day when the section 2 duty to remove comes into force in relation to that person. At present, section 2 is not in force and, thus, at present, the exclusionary effect of the British nationality provisions of the Illegal Migration Act 2023 remain in force but have been deprived of substantive effect. Hopefully, this is a step on the road towards their repeal. The Illegal Migration Act 2023 contains a number of provisions more suited to populist political posturing than workable policy and good administration. The British nationality restrictions were among them. The new government is moving in the right direction in drawing their sting.